On September 15, 2015, US EPA’s Office of Enforcement and Compliance Assurance published a proposed list of national enforcement initiatives (NEIs) for fiscal years 2017–19.  This latest NEI list includes NEIs from the last round (FY2014–16) as well as three new potential NEIs that US EPA is considering. 

Previous NEIs include: (1) air pollution from the largest sources; (2) toxic air pollution; (3) pollution from energy extraction and production activities; (4) pollution from mineral processing operations; (5) raw sewage and contaminated stormwater; and (6) water pollution from animal waste.

Noting that it is “very mindful that our resources have been declining over the past five years,” US EPA proposes three new potential NEIs are as follows:

1. “Protecting Communities from Exposure to Toxic Air Emissions.”  US EPA proposes expanding the previous air toxics NEI in two directions.  First, US EPA proposes to include emissions from “Organic Liquid Storage Tanks” at terminals, refineries, and chemical plants.  The Agency claims that, by using “advanced monitoring” techniques including optical remote sensing, US EPA has observed volatile organic compound (VOC) and hazardous air pollutant (HAP) emission violations as a result of inadequate maintenance, design flaws, and production expansion without additional emissions controls.  Second, US EPA proposes to include Hazardous Waste Air Emissions from the handling of hazardous wastes.  The Agency notes that publicly available compliance information suggests that there are “widespread [RCRA] violations” at treatment, storage, and disposal facilities and large quantity generators.
2. “Keeping Industrial Pollutants out of the Nation’s Waters.”  US EPA proposes to focus on “[c]ertain industrial sectors” that “contribute a disproportionate amount” of nutrient and metal pollution in water: mining, chemical manufacturing, food processing and primary metals manufacturing.
3. “Reducing the Risks and Impacts of Industrial Accidents and Releases.”  US EPA proposes to focus on about 2,000 facilities that “are currently considered ‘high-risk’ because of their proximity to densely populated areas, the quantity and number of extremely hazardous substances they use, or their history of significant accidents.”  However, the agency does not indicate what the substances of concern are nor the potential sectors targeted.

Comments are due October 14, 2015.  US EPA is inviting the public to comment on: (i) whether each FY2014–16 NEI should continue into the FY2017–19 cycle (and any adjustments to areas of focus); (ii) the three new potential NEIs; and (iii) Next Generation Compliance opportunities for the previous and potential new NEIs. The proposal is available here.

By Alexander Bandza, Associate, Jenner & Block

Read more at Corporate Environmental Lawyer Blog by Jenner & Block LLP.

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